Nikolai Alexandrovich Ladnov v. U.S. Atty. Gen. , 384 F. App'x 867 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2010
No. 09-14139 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency Nos. A079-477-219
A079-477-220
NIKOLAI ALEXANDROVICH LADNOV,
OLGA IVANOVNA SIDOROVA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 22, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Nikolai Alexandrovich Ladnov, through counsel, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the
Immigration Judge’s (“IJ”) order denying his petition for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C.
§§ 1158, 1231, 8 C.F.R. § 208.16.(c). He included his wife, Olga Sidorova, as a
derivative beneficiary on his application. On appeal, Ladnov argues that he
suffered past persecution in Estonia because of his ethnicity and race, so he should
be presumed as having established a well-founded fear of future persecution. He
argues that the IJ and the BIA erred in classifying the past persecution as mere
“incidents of harassment and discrimination” that did not rise to the level of
persecution. Ladnov argues that the BIA and IJ erred when determining if he was
persecuted because they failed to aggregate the events of “discrimination,
ostracism, and violence” he faced in Estonia. He contends that the facts of his case
are similar to those of the applicants in Matter of O-Z & I-Z, 22 I&N Dec. 23. He
contends that his expert witness and the Estonian country report provided
uncontroverted evidence that the Estonian government is unwilling or unable to
protect him. He further contends that conditions in Estonia have not improved.1
1
Ladnov fails to challenge on appeal the BIA’s denial of protection under the
CAT. Thus, he has abandoned this issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
n.2 (11th Cir. 2005) (holding that “[w]hen an appellant fails to offer argument on an issue, that
issue is abandoned,” and that “passing references to issues are insufficient to raise a claim for
appeal, and such issues are deemed abandoned”).
2
We review only the BIA’s decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). “Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s
decision as well.” Id. We review the determination by the BIA that an applicant is
statutorily ineligible for asylum or withholding of removal under the “substantial
evidence test.” Id. at 1283. We review the BIA’s legal determinations de novo.
Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). “To reverse a
factual finding by the BIA, [we] must find not only that the evidence supports a
contrary conclusion, but that it compels one.” Farquharson v. U.S. Att’y Gen., 246
F.3d 1317, 1320 (11th Cir. 2001).
An alien who arrives or is present in the United States may apply for asylum.
See 8 U.S.C. § 1158(a)(1), INA § 208(a)(1). To qualify for asylum, the alien must
be a “refugee.” See 8 U.S.C. § 1158(b)(1), INA § 208(b)(1). A “refugee” is any
person who is unwilling to return to his home country or to avail himself of that
country’s protection “because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a). The applicant
satisfies this burden by showing, with credible evidence: (1) past persecution on
account of a statutorily listed factor, or (2) a well-founded fear that his statutorily
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listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b). We have
defined persecution as an “extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231(quotations omitted). “Mere harassment does not amount to persecution.”
Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). “[E]mployment
discrimination which stops short of depriving an individual of a means of earning a
living does not constitute persecution.” Barreto-Clara v. U.S. Att’y Gen., 275 F.3d
1334, 1340 (11th Cir. 2001) (holding that although petitioner suffered employment
discrimination, lost his job as a taxi driver, and was forced to take menial work, he
was not persecuted).
An applicant who has demonstrated past persecution is presumed to have a
well-founded fear of future persecution. 8 C.F.R.§ 208.13(b)(1). However, when
an applicant fails to demonstrate past persecution, he must establish that he has a
well-founded fear of future persecution by showing (1) a reasonable possibility of
personal persecution that cannot be avoided by relocating within the subject
country, or (2) a pattern or practice in the subject country of persecuting members
of a statutorily defined group of which he is a part. 8 C.F.R § 208.13(b)(2),
(b)(3)(i). An alien who cannot demonstrate past persecution also has the burden of
showing that it would not be reasonable for the alien to relocate in the home
country, unless the persecution is by the government or is government-sponsored.
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8 C.F.R. §208.13(b)(3)(ii).
Under the INA, an alien shall not be removed to her country of origin if her
life or freedom would be threatened in that country on account of race, religion,
nationality, membership in a particular social group, or political opinion. See
8 U.S.C. § 1231(b)(3), INA § 241(b)(3). This standard for withholding of removal
is more stringent than the well-founded fear standard for asylum. Huang v. U.S.
Att’y Gen., 429 F.3d 1002, 1010-11 (11th Cir. 2005). Thus, if an applicant is
unable to meet the well-founded fear standard for asylum, he generally is unable
to qualify for withholding of removal or deportation. See Al Najjar, 257 F.3d
at 1292-93.
Here, substantial evidence supports the BIA’s decision affirming denial of
Ladnov’s petition for asylum and withholding of removal. In concluding that
Ladnov was ineligible for asylum, and consequently, withholding of removal, the
BIA noted that Ladnov testified regarding “significant incidents of harassment and
discrimination at the hands of ethnic Estonians in October 1993 and April 1998.”
However, the BIA noted that despite this harassment Ladnov was able to obtain a
degree in mechanical engineering and receive a visa to study in the United States.
The BIA also adopted the IJ’s reasoning regarding past persecution. Thus, we
review the portion of the IJ’s order that discusses this issue. See Al Najjar, 257
F.3d at 1284.
5
Contrary to Ladnov’s assertion, the IJ stated that he cumulatively considered
the events that Ladnov described, but found that they did not rise to the level of
persecution and appeared to be isolated incidents. Substantial evidence supports
the IJ’s determination. Ladnov complained that he was ostracized as a child and
developed a speech impediment. Regarding the 1993 school-dance attack, Ladnov
was called names and suffered a broken nose from an attack. Regarding the 1998
tram-stop incident, Ladnov was hit and suffered a split lip, hematomas, and a
headache. All of these may have been harmful, but did not rise to the level of
persecution. See Sepulveda, 401 F.3d at 1231 (noting that persecution is an
“extreme concept”). Moreover, considering that large intervals of time elapsed
between the events that Ladnov described, substantial evidence exists to indicate
that these events did not rise to the level of past persecution.
The IJ noted that Ladnov alleged that he was deprived of jobs in Estonia
because of his ethnicity. However, the IJ found that Ladnov’s “contention finds
little documentary support in the record.” Ladnov testified that he applied for 25
or 30 mechanical engineering positions in Estonia, but was denied all of them
because he had a Russian accent when he spoke Estonian. He also noted that he
worked “odd-jobs to survive” because he was unable to obtain a mechanical
engineering job. Thus, although he could not find a mechanical engineering
position, he was able to find other work, so this alleged employment discrimination
6
did not constitute persecution. See Barreto-Clara, 275 F.3d at 1340.
The BIA adopted the IJ’s reasoning regarding Ladnov’s failure to
demonstrate a reasonable possibility of future persecution. In pertinent part, the IJ
noted that Ladnov’s family remained in Estonia, and that the incidents to which
Ladnov testified occurred many years ago. Thus, the IJ correctly noted that
Ladnov failed to demonstrate that Estonia has “a pattern or practice” of
discriminating against other dark-skinned people. 8 C.F.R § 208.13(b)(2).
Moreover, Ladnov did not show that “a reasonable possibility” exists that he will
be persecuted. 8 C.F.R § 208.13(b)(3)(i).
Although Ladnov argues that the facts of his case are similar to those of the
petitioner in Matter of O-Z & I-Z, 22 I&N Dec. 23, the BIA found that the
mistreatment cited in Matter of O-Z & I-Z- was significantly more severe than the
incidents of harassment and discrimination described by Ladnov. In Matter of O-Z
& I-Z, the respondents suffered a series of violent attacks, in which they were
physically harmed, over a two-year period. See Matter of O-Z & I-Z, 22 I&N Dec.
23. Here, Ladnov testified to events of discrimination he endured as a child, the
1993 school-dance incident, the 1997 marriage license incident, the 1998 tram-stop
incident, and his inability to find a mechanical engineering job. These events
occurred far apart and appear to be “a few isolated incidents of verbal harassment
or intimidation,” so they do not constitute persecution. See Sepulveda, 401 F.3d at
7
1231.
Moreover, Professor Ralph S. Clem’s affidavit does not indicate otherwise.
Although Clem noted that an “extremely hostile atmosphere” exists in Estonia “for
persons of ethnic Russian descent,” he could not definitively state whether Ladnov
would be persecuted if he returned to Estonia. Clem also did not state that the
government was unwilling or unable to protect Ladnov. Instead, Clem attested that
“Ladnov would very likely be subject to continued discrimination in the
workplace, and quite possibly, continuing physical danger, in Estonia because of
his Russian ethnicity.”
In addition, the United States Department of State’s 2007 Country Report
for Estonia does not support Ladnov’s contentions. The Report noted that the
Estonian government “generally respected the human rights of citizens and the
large ethnic Russian noncitizen community,” and that problems only existed in
some areas. The report noted that “[i]nstances of overt hostility based on ethnicity
or race were infrequent, but they occurred.” The report also noted that Estonian
law “prohibits incitement to hatred, violence, or discrimination” based upon, inter
alia, nationality, race, skin color, language, and social origin. Thus, the evidence
does not compel a contrary conclusion. See Farquharson, 246 F.3d at 1320.
Because Ladnov fails to satisfy his burden to obtain asylum, he fails to satisfy the
higher burden for withholding of removal. See Al Najjar, 257 F.3d at 1292-93.
PETITION DENIED.
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